The Queen v. Tsui Lai Ying and Others

IN THE COURT OF APPEAL

1985, No. 406
(Criminal)

BETEEN

THE QUEEN

and

TSUI LAI YING

SIU NIN

YEUNG CHI WAI

MAK HUNG

_____________

Coram: Silke,V.-P. & Penlington, J.

Date of Hearing : 20th June 1987

Date of Judgment : 20th June 1987

_____________

JUDGMENT

_____________

Silke, V.-P.:

1. On the 10th April 1987 we dismissed the applications for leave to appeal against conviction of these applicants and adjourned the matter of sentence at the request of counsel. This was further adjourned on the 12th June until today.

2. We approached these applications for 1eave to appeal against sentence bearing in mind the period of the conspiracy, some 18 months from January of 1983 to July of 1984, the quantity of heroin base which was brought into Hong Kong during that period of 2.8 tons and its market value of some $700 million. We viewed the offences as most serious one. We do not think that the sentence imposed on the informer Ko, or the lack of sentence on Kam, to have direct relevance. Their circumstances were entirely different and we accept that they were used by the prosecution although they were, in contrast to the Applicants, major participants in the conspiracy. We must look at the actual offence for which these Applicants now be fore us were convicted.

3. Dealing with them individually: Tsui Lai Ying – “D1” - was fully involved in the conspiracy. The trial judge described her, and we think correctly, as a principal figure. She was actively involved in the transfer of money which she knew to come from drugs to the Thai principals and this to the tune of some $40 million. She was also involved in acting as an agent and was a full participant in the conspiracy though not, we accept, to the same extent as was Ko. The factor which concerns us most is her age, now 60. She will be 61 in December of this year. Her health is relevant but only in a minor aspect. She seems to be suffering from the general, degeneration that tends to come with age together with an element of Hyper Tension. The sentence of 20 years' imprisonment would mean her eventual release when she is close to the age of 80. Courts tend to lean against, but only in special circumstances, sentences on persons of equivalent age which may lead to the possibility of death in the course of it being served. There is no direct evidence here that would lead to such a conclusion in relation to Tsui Lai Ying, other than the factor of her age, but bearing the age of the woman in mind, we are prepared as an act of mercy, and without in any way indicating that the sentence relative to an offence was excessive, to reduce it from one of 20 years to one of 16 years and the application is granted and the appeal allowed to that extent.

4. The 6th Defendant, Siu Nin, acting as a courier and a store-keeper over a short period. He was a serving police constable and, no doubt, that assisted him in his activities and was one of the reasons why he was recruited. It is a factor to be taken into consideration, the apportionment of blame for him is not dissimilar to that of D10.

5. We think that too much emphasis was laid by the trial judge on the factor of his being a police constable. For that reason, we are prepared to grant the application and allow the appeal by reducing the sentence of 17 years to one of 15 years. The factor of being a police constable is one which must most certainly be considered but should not be over-emphasised. There was no evidence that he used his position in any other way other than a courier and a store-keeper.

6. The 8th Defendant, Yeung Chi Wai, was generally implicated in the collection and importation of dangerous drugs over a period. He made three journeys to collect the drugs and to transport them into Hong Kong. We note his personal circumstances, that he was a crew member, that he has married and has three children, that he is an illiterate fisherman. In the light of his complicity in the conspiracy, we do not think the sentence was, in any way, wrong. The application for leave to appeal against sentence is refused.

7. The 10th Defendant, Mak Hung, we accept, was a late entrant. He was involved generally in. this massive drug conspiracy but directly in one transportation of 210 kilogrammes of heroin base into Hong Kong. Further, he was a boat owner. We note that which had been drawn to our attention in relation to his personal circumstances and these, of course, were also brought to the attention of the trial judge. In the light of the part he played we do not think that the sentence of 13 years' imprisonment is, in any way, excessive. His application for leave to appeal against sentence is also refused.

G. Plowman, Esq. (C.W. Leung & Co.) for D1.

J. Hemmings, Esq. (C.W. Leung & Co.) for D6.

G. Alderdice, Esq. (Tang & Knight) for D8 and D10.

A.P. Duckett, Esq., Q.C., Deputy Crown Prosecutor with T.H. Casewell, Esq., Crown Counsel for Respondent/Crown Prosecutor.